Excerpt:municipality - assessment--lands forming part of revenue paying estate--whether exempted from assessment--'holding', basis of--occupation--bengal municipal act (iii b.c. of 1884), sections 6 clause (3), 101, 103, 110--jurisdiction--civil court--declaration that assessment illegal. - .....of rates, even though it is conceded, upon the view of law we take, that some of the parcels of land assessed may be entitled to exemption from assessment under section 85, on the ground that the annual value is less than six rupees.6. in so far as the fourth ground is concerned, it is clear that the separate assessment of the houses and gardens of the tenants has been based upon an erroneous view of the meaning of the term 'holding'. but the district judge has correctly pointed out that this is a matter which does not concern the plaintiff. it is possible that the tenants have been improperly assessed; and they may have their remedy against the municipal authorities.7. the conclusion follows that, although we are of opinion that the statute has been misinterpreted, and there is some.....

Judgment:

1. This is an appeal on behalf of the plaintiff in a suit for declaration that an assessment of rates made by the Municipality of Patna under the Bengal Municipal Act of 1884 is ultra vires. In the Court of first instance, the claim of the plaintiff was allowed; but that decision has been reversed on appeal by the District Judge. In the present appeal, the assessment has been questioned on four distinct grounds, namely, first, that, as the plaintiff is the owner of a revenue paying estate, he is not liable to be assessed under the Bengal Municipal Act; secondly, that the holdings in respect of which he has been assessed, have been arbitrarily created by the Municipal authorities in contravention of the provisions of the statute; thirdly, that as there are intermediate holders between the plaintiff and the actual occupiers of the land, the plaintiff is not liable to be assessed; and fourthly, that inasmuch as the occupiers of some of these holdings have been assessed in respect of houses and gardens standing thereon, the plaintiff ought to be exempted from assessment.

2. Before we deal with these grounds, it is necessary to mention that the plaintiff is the proprietor of a large tract of land situated within the Patna Municipality. Many years ago, these lands were divided into two holdings and assessed under the Bengal Municipal Act. In 1904, the Municipal authorities added four new holdings, to the two which had existed from before. The plaintiff brought an action to test the legality of the course adopted by the Municipality and it was held that as the lands comprised in the new holdings were included in the two pre-existing holdings the creation of fresh holdings was ultra vires. Thereupon, in 1907, the Municipality treated all the lands as comprised in one holding. The plaintiff was dissatisfied and preferred an objection under the provisions of the Bengal Municipal Act. The result was that the lands were constituted into five separate holdings. The plaintiff has commenced this suit for declaration that the action of the Municipality was without jurisdiction.

3. The first of the grounds upon which the assessment is assailed, is obviously without substance, Under Section 103 of the Bengal Municipal Act, the rate upon a holding is payable in quarterly instalments by the owner of the holding. Section 85 defines the circumstances under which a rate may be imposed on the annual value of a holding situated within the Municipality. There is no exemption, either express or implied, in* favour of the holders of revenue-paying estates within a Municipality. The mere circumstance, therefore, that the lands assessed form part of a revenue-paying estate is no ground for exemption. The first; ground, consequently, fails.

4. To determine the validity of the second, third and fourth grounds, it is essential to examine the meaning of trier term 'holding' as used in the Bengal Municipal Act. Section 6, Clause (3), of the Act provides that the term 'holding' means land held under one title or agreement and surrounded by one set of boundaries. On behalf of the plaintiff, it has been contended that the term holding' refers to land held by an occupier under one title or agreement and surrounded by one set of boundaries. On behalf of the respondent, it has been argued, on the other hand, that the term holding' means land held by an owner under one title or agreement and surrounded by one set of boundaries. The question, therefore, arises whether the term 'holding' is used with reference to the occupier or the owner. In our opinion, there is no room for reasonable controversy that the basis of a holding' is occupation, and the term holding' is used with reference to land held by an occupier under one title and surrounded by one set of boundaries. To take a concrete instance, an owner may have ten bighas of land which he holds under one title and which is surrounded by one set of boundaries. He lets out different parcels to ten different occupiers. The question arises, whether the laud constitutes one holding or ten holdings for the purposes of the Bengal Municipal Act. The learned Vakil for the Municipality has contended that we must confine our attention to the title of the owner and cannot have regard to the occupation of different parcels by different occupiers. But if this contention is accepted, extremely anomalous results obviously follow. For instance, if we look to Section 105, we find that the tax due from a non-resident owner may be recovered from the occupier and may be deducted by (he latter from his rent. If, therefore, there are ten distinct occupiers of what is called one holding by the respondent, and if the owner makes default in payment of the rate primarily payable by him under Section 103, it is open to the Municipal authorities to proceed at their choice against any one of those occupiers and make him responsible for the payment of the entire amount. This could hardly have been in-tended. If again we turn to Section 110, we find that there is a provision for remission or refund on account of vacant holdings. If in the case before us, there is one occupier, who ceases to occupy his parcel, there is no room for the application of Section 110, because the remainder of the holding as interpreted by the respondent, is occupied by other persons. The provisions of the Municipal Act, in our (c)pinion, make it reasonably plain that the basis of the assessment of rates is occupation. We are concerned primarily with land as occupied by a parson; the land in the occupation of such a person, if held under one title and comprised within one set of boundaries, constitutes a holding for the purposes of the Bengal Municipal Act. The rate is determined upon the annual value which is defined, in Section 101, as the gross annual rent at which that holding may be reasonably expected to let. Section 103 then provides that the rate so determined is to be paid in quarterly instalments by the owner of the holding. Consequently, when the owner himself is in occupation, he is himself liable for the rate. When there is an occupier under the owner who is in actual occupation of the holding, although the rate is assessed upon the annual rent, yet it is the owner who is held primarily liable for the payment thereof. If the view suggested by the respondent were adopted, the consequence would be that every person interested in a particular parcel of land, whatever the grade of his interest might be, would be liable to be assessed with the rates. For instance, in respect of a parcel of land, there might be, under the Government, a zemindar; under the latter, there might be successively a patnidar, or darpatnidar, and, ultimately, the last in the series, the actual occupier. According to the contention of the respondent, the zemindar would be liable to be assessed in respect of the 'holding' because he held the land under one title and surrounded by one set of boundaries. The patnidar under the zemindar would be equally liable to be assessed, because his interest falls within the definition of the term 'holding' as given in Section 6 Clause (3); and similar remarks would apply to the dar-patnidar. It must further he observed in this connection that each of these persons would be liable to be assessed, not in respect of his net profits from the land, but upon the gross annual rent at which the holding may be reasonably expected to let. But it can hardly be maintained that the Legistature intended that the same parcel of land should be liable to be assessed twice or thrice over, We are, therefore, of opinion that the term 'holding' as used in the Bengal Municipal Act means land held by an occupier under one title or agreement and surrounded by one set of boundaries. If this interpretation be adopted, it is fairly clear that the second and the third objections must be deemed substantial. Under the statute as interpreted by us, it is the duty of the Municipality to ascertain whether a particular parcel of land is held by an occupier under one title, and whether it is comprised within one set of boundaries. If it is land of this description, the rate is assessed upon it in accordance with the, principle laid down in Section 101. That rate becomes payable by the owner, that is to say, the person above the occupier, if the occupier himself is not the owner under Section 103.

5. But, although we are of opinion that the second and third grounds urged by the appellant are substantial, we are unable to give effect to them, by reason of the manner in which the suit has been framed and con- ducted in the Courts below. It may be conceded that when a Municipal Corporation has acted in contravention of the provisions of the statute, it is open to a Civil Court to declare that the assessment is illegal. In support of this proposition, reference may be made to the cases of The Chairman of Giridh Municipality v. Suresh Chandra Mozumdar 35 C. 859 : 12 C.W.N. 709 : 7 C.L.J. 631 and The Chairman Municipal Board Chapra v. Basudeo Narain Singh 37 C. 374 : 5 Ind. Cas. 321 : 14 C.W.N. 437 : 11 C.L.J. 400.' In the, case before us, however, although there is ample indication that the assessment made by the Municipality has been based upon an erroneous interpretation of the term holding' as used in the Bengal Municipal Act, yet it is plain that the two specific objections now urged before us, were not taken either before the Municipal authorities or before the Courts below. It is clear from an examination of the records that although the plaintiff urged that the sub-division of his land into five holdings was beyond the competence of the Municipal authorities, he never invited the Municipality to assess his land after constituting it into holdings according to the occupation of the land by different tenants. In fact, it is clear that after the Municipality had treated the entire land as constituting one holding, the plaintiff objected, and upon his objection the land was divided into five holdings. The plaintiff ought to have urged at that stage that the holdings were improperly constituted and that it was obligatory upon the Municipality to determine the land in the occupation of each separate tenant. Bat not only did the plaintiff not take any such objection before the Municipal authorities, he did not urge any such objection in the Court of first instance, nor was it presented before the Court of appeal below. The result is, that although the documents upon which the assessment of the Municipality is based, indicate that in 1884 there were numerous tenants in:' occupation of different parcels of land, it impossible for us to hold in respect of any of the holdings now assailed by the plaintiff, that it is not in the occupation of one tenant. Before the plaintiff can succeed in respect of the assessment for any one of these five holdings, he must satisfy the Court that the particular holding has been constituted in contravention of the provisions of the statute. He is unable to do so, because there are no materials on the record to show how many tenants are in occupation of the different holdings. Similar observations apply to the third ground urged by the appellant. No doubt the documents, upon which the assessment has been made, indicate that there were intermediate holders, between the plaintiff and the occupiers in 1884; there is no evidence, however, to show whether these intermediate holders now exist; if they do, according to the view we take, the plaintiff is not liable to be assessed. But the plaintiff has not established by evidence that in respect of the land comprised in any one of these five holdings, he is not the immediate landlord of the tenants in occupation. Consequently, although the second and the third grounds are substantial and might possibly have succeeded in part or in their entirety, if they had been urged in a properly framed suit and had been sought to be supported by evidence, we are not in a position to give effect to them. Nor do we think that this is a case an which a remand should be made at this stage to the Court of first instance to enable the plaintiff to establish these objections. The effect of a remand would be that the plaintiff would escape payment of rates, while he is indubitably liable for a considerable amount of rates, even though it is conceded, upon the view of law we take, that some of the parcels of land assessed may be entitled to exemption from assessment under Section 85, on the ground that the annual value is less than six rupees.

6. In so far as the fourth ground is concerned, it is clear that the separate assessment of the houses and gardens of the tenants has been based upon an erroneous view of the meaning of the term 'holding'. But the District Judge has correctly pointed out that this is a matter which does not concern the plaintiff. It is possible that the tenants have been improperly assessed; and they may have their remedy against the Municipal authorities.

7. The conclusion follows that, although we are of opinion that the statute has been misinterpreted, and there is some indication that the assessment has possibly been illegal, the plaintiff has not been able to establish with regard to any particular holding that the assessment has been, on the facts, made in contravention of the statute and is liable to be declared ultra vires by a Civil Court. We, therefore, dismiss the appeal but direct that each party do bear his own costs throughout the litigation.